Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

New research on the organizational role of court rulemaking

Flickr_-_USCapitol_-_Thurgood_Marshall_Federal_Judiciary_Building

I am delighted to announce that my new article, The Federal Courts’ Rulemaking Buffer, is now available on SSRNPlease download it early and often!

The article arose in response to two perplexing questions about the federal court system’s civil rulemaking process. First, why do the courts engage in rulemaking at all? The courts pride themselves on being highly efficient and countermajoritarian, but rulemaking is time-consuming, quasi-democratic, and policy-driven. Making rules by committee, then, seems particularly unsuited to the work of the judicial branch.

Second, why have the courts made the rulemaking process more complicated over time? Initially, the entire work of formulating and amending rules was assigned to a single committee. Today, the rulemaking process must navigate at least five levels of the court system hierarchy, with additional opportunities for public and special interest input. As a result, amending a single rule often taken three to five years.

So what gives? Why would the courts embrace a task outside of their expertise, and then make it more and more complex?

The article offers an explanation to both questions that is grounded in organizational theory. I explain that the court system initially developed the rulemaking process as a buffer, to protect its core work from the instability of its larger environment. The power to make procedural rules gives allows the court system to respond to a drop in resources, or a surge in cases, without the entire judicial process grinding to a halt. But the rulemaking process also requires external legitimacy to function, and when that legitimacy has been challenged from time to time, the courts have responded by making the process more open, complex, and transparent.

The article touches on many of themes of this blog, including the federal court system’s resource dependence, neoinstitutional theory, and the influential role of other organizations (such as executive agencies, the ABA, and Congress) in altering court-centered rulemaking over time. And it features appearances from William Howard Taft, Earl Warren, Warren Burger, Roscoe Pound, Tom Clark, and others.

The article will be formally published in the William & Mary Law Review later this year. I welcome any thoughts from readers, privately or in the comments.

Pictured: Thurgood Marshall Federal Judiciary Building